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Race, Robes, and Responsibility: What About Bybee?

By Jack M. Balkin

John Yoo is getting all the heat for the Torture Memo. But Jay Bybee was the boss. The memo was issued in his name, and he signed it. So why is Yoo up against the bullseye, while Bybee mostly gets a free pass?

Why is Bybee given the benefit of the doubt--as when Stephen writes in his post below that "Bybee could be impeached if he played an active role in these events, but it really sounds like he did not."--while Yoo is excoriated?

One possible reason is that Yoo has steadfastly defended the memos ("boilerplate" stuff), while Bybee remains mum. Yoo's unrepentant stance infuriates critics all the more. To his credit, however, Yoo has not tried to lay blame or responsibility on others, although that would be easy to do (try the White House torture club).

Another reason might be that Bybee is a sitting federal judge, and there is perhaps some sense that he is entitled to special respect. Of course, a less deferential reaction would also be justifiable: to feel aghast that he holds such a position and to implore him to preserve the dignity of his office and resign. After all, how can a person who signed that memo be trusted to carry out the duties of the judicial office.

Another possible reason might be race. Go ahead, roll your eyes ("there's that damn race card again"), but anyone who thinks race doesn't matter in America in ways large and small is not paying attention. My gut tells me--or I want to believe--that race is not a factor in this, but I can't rule it out.

I don't know which of these reasons, if any, explains the polite treatment Bybee has so far received, in stark contrast to the pounding Yoo is getting. But for what it's worth, in my book they bear precisely equal responsibility for their joint product. Yoo may well have written it (all of it? most of it? we don't know), but Bybee had final say. There is no doubt that he read it closely. He approved it. In this context, Bybee was the decider.

Let's get it right: this is the "Bybee Yoo Torture Memo."

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Full post as published by Balkinization on April 16, 2008 (boomark / email).